2001-VIL-153-ITAT-JDP

Equivalent Citation: TTJ 073, 001,

Income Tax Appellate Tribunal JODHPUR

Date: 17.08.2001

HISSARIA BROTHERS.

Vs

JOINT COMMISSIONER OF INCOME-TAX.

BENCH

Member(s)  : S. R. CHAUHAN., P. M. JAGTAP.

JUDGMENT

BY THE BENCH:

As the above appeals involve common points, so we are disposing them of by this common order for the sake of convenience.

2. ITA Nos. 434/Jdpr/2000, 429/Jdpr/2000 and 432/Jdpr/2000 are appeals by the assessee for asst. yrs. 1993-94, 1994-95 and 1995-96 in respect of penalties under s. 271D sustained by the learned CIT(A), Udaipur, while ITA Nos 499/Ju/2000, 504/Ju/2000 and 502/Ju/2000 are appeals by the Revenue for asst yrs. 1993-94, 1994-95 and 1995-96, respectively, in respect of penalties under s. 271D cancelled by the learned CIT(A), Udaipur, vide his appellate common order, dt. 18th Aug., 2000. Similarly, ITA Nos. 433/Jdpr/2000, 430/Jdpr/2000 and 431/Jd/2000 are appeals by the assessee for asst. yrs. 1993-94, 1994-95 and 1995-96 in respect of penalties under s. 271E sustained by the learned CIT(A), while ITA Nos. 500/Ju/2000, 503/Ju/2000 and 501/Ju/2000 are appeals by the Revenue for asst. yr. 1993-94, 1994-95 and 1995-96 in respect of penalties under s. 271E cancelled by the learned CIT(A), Udaipur.

3.(i) The facts, in brief, as per the assessee, are that the assessee is a firm doing the business of Kachha Arhatiya, acting as agent for its farmer-constituents, who used to bring their crops to the assessee for sale, and the assessee in this relationship used to sell their crops and keep/retain the sale proceeds of crops so as to be adjusted against their time to time withdrawals and buying of goods. The assessee was catering to their needs like payment in cash, supply of goods like fertilizer (Khad) seeds, pesticides, etc. retaining sale proceeds of crops accepting amounts given by farmers for the purpose of meeting on their time to time needs. The nature of dealings between Kachha Arhatiya and the farmer were fast, frequent and of current nature. No stipulation ever existed in regard to amounts, if any, given by the fanner to the assessee for keeping it for the purpose of making out their time to time needs. The farmer-constituents were hesitant in having dealings through banks, due to time constraints, tedious formalities, etc., etc. The dealings between the assessee and the farmer-constituents were in cash, sometimes they took sums in cash from the assessee-firm and sometimes they gave the sums to assessee-firm, so that their prospective requirements might be met.

(ii) In asst. yr. 1993-94, involved in assessee's appeals, being ITA Nos. 434/Jdpr/2000 and 433/Jdpr/2000 and Revenue's appeals being ITA No. 499/JU/2000 and 500/Ju/2000, the AO Jt. CIT held that instances mentioned in Annexure A and Annexure B of the penalty orders to be in the nature of deposits, violative of s. 269SS and liable for penalty under s. 271D; and similarly, when amounts were given from those accounts, in cash the repayments were also held to be violative of provisions of s. 269T and liable for penalty under s. 271E. The learned CIT(A) cancelled the penalties in regard to instances of Annexure B known as 'balancing of accounts' under both the provisions of ss. 271D and 271E holding that they neither fell in the category of 'deposit' under ss. 269SS and 269T, nor was the penalty justified due to reasonable/sufficient cause envisaged under s. 273B. However, the learned CIT(A) held some instances of cash credits as per Annexure A totalling to Rs. 1,89,000 pertaining to three persons, namely, Shri Prem Prakash, Shri Gangaram, and Shri Shivraj to be in the nature of deposit and violative of s. 269SS and in turn withdrawals therefrom in cash violative of s. 269T, and so he sustained penalties for these receipts under s. 271D and for repayments therefrom under s. 271E, not accepting the assessee's plea of reasonable cause, in respect thereof.

(iii) In asst. yr. 1994-95, involved in assessee's appeals Nos. 429/Jdpr/2000 and 430/Jdpr/2000 and Revenue's appeal Nos. 504/Ju/2000 and 503/Ju/2000, the AO/Jt. CIT levied penalties under ss. 271D and 271E in respect of instances specified in Annexure A, Annexure B, Annexure C and Annexure D to the penalty orders. But the learned CIT(A) cancelled the penalties under ss. 271D and 271E in regard to instances specified in Annexure A and Annexure D on the ground of reasonable/sufficient cause envisaged under s. 273B and also holding the instances specified in Annexure D as being not in the nature of 'deposit', whereas the instance specified in Annexure A were held to be in the nature of 'deposit'. The learned CIT(A) sustained the penalties under ss. 271D and 271E in respect of instances specified in Annexure B and Annexure C, being receipts in cash exceeding Rs. 20,000 as also withdrawals therefrom being in excess of Rs. 20,000, held to be repayments, and thus liable for penalties on both the counts under ss. 271D and 271E. However, the learned CIT(A) directed the AO/Jt. CIT for allowing some relief after verification regarding the facts of extent of receipt. The learned CIT(A) did not accept the assessee's plea regarding the above receipts being not deposits, nor did he accept the assessee's plea regarding bona fide belief coupled with genuineness of transactions.

(iv) In asst. yr. 1995-96, involved in assessee's appeals Nos. 432/Jdpr/2000 and 431/Jdpr/2000 and Revenue's appeals Nos. 502/Ju/2000 and 501/Ju/2000, the AO/Jt. CIT levied penalties for the instances mentioned in Annexure A, Annexure B and Annexure C to the penalty orders. However, the learned CIT(A) cancelled the penalties in respect of instances specified in Annexure A and Annexure C, accepting the assessee's plea of there being reasonable cause and bona fide belief. But the learned CIT(A) did not accept the assessee's contention regarding the receipts of instances mentioned in Annexure A not being in the nature of deposits. The learned CIT(A) sustained the penalties under ss. 271D and 271E in respect of instances specified in Annexure B which pertained to the amounts found as non-tallying credit entries of the seized notebook.

(v) The assessee's plea regarding the penalty proceedings under ss. 271D and 271E for all the above three asst. yrs. 1993-94, 1994-95 and 1995-96 being time-tarred under s. 275(1)(c) was not accepted by the authorities below.

4. We have heard the arguments of both the sides and have also perused the records including the w/s/PB furnished on record before us.

From the perusal of record, we find the following fact-situation regarding the penalty under ss. 271D and 271E being levied, deleted and sustained up to first appellate authority:

---------------------------------------------------------------------
Asst. yr.     A.O. levied penalty          CIT(A) deleted penalty
          Under s. 271D  under s. 271E  under s. 271D   under s. 271E
---------------------------------------------------------------------
1993-94   1,70,94,000    1,85,31,963    1,69,05,000      1,82,61,553
          (Annex         (Annex.
          A-2,64,000 +   A-2,70,410 +
          B-1,68,30,000) B-1,82,61,553)
1994-95   56,23,319      60,84,313      49,02,876        52,54,066
          (Annex.        (Annex.
          A-29,07,876 +  A-30,29,864 +
          B-2,30,536 +   B-3,01,932 +
          C-4,89,907 +   C-5,28,316 +
          D-19,95,000)   D-22,24,202)
1995-96   56,62,799      59,22,327      47,62,386        50,22,864
          (Annex.        (Annex.
          A-30,31,465 +  A-32,90,993 +
          B-8,99,963 +   B-8,99,963 +
          C-17,31,371    C-17,31,371
---------------------------------------------------------------------
Table Continues...
---------------------------------------------------------------------
    CIT(A) sustained penalty                     Remarks
under s. 271D    under s. 271E
---------------------------------------------------------------------
1,89,000         1,89,000        CIT(A) deleted penalty of Rs. 75,000
                                 (out of Rs. 2,64,000 as per Annexure
                                 A) under s. 271D and whole of
                                 Annexure B.
7,20,443         8,30,247
(Annex.          (Annex.
B+C)             B+C)
8,99,963         8,99,963
(Annex.          (Annex.
B)               B)
---------------------------------------------------------------------

5. The assessee has been aggrieved against the penalty sustained by

5. The assessee has been aggrieved against the penalty sustained by the learned CIT(A) and has preferred its appeals Nos. 429 to 434/Ju/2000 for asst. yrs. 1993-94 to 1995-96 and the Revenue has been aggrieved against the relief accorded by the learned CIT(A) in respect of the penalties under ss. 271D and 271E (levied by the AO) and reflected above under the head of deletion of penalty by CIT(A), and so the Revenue has preferred its appeals bearing ITA Nos. 499 to 504/JU/2000.

6. First we take up assessee's ground relating to limitation, wherein the penalty orders under ss. 271D and 271E passed by Jt. CIT are stated to be barred by limitation under s. 275(1)(c). This issue is contained in ground No. 2 of assessee's appeals. The learned authorised representative of assessee has referred to p. 30 of his common w/s for asst. yrs. 1993-94 to 1995-96 being in respect of assessee's appeals (for short CW/s), being Annexure 1 therein and has contended that in the column third from last in the said chart, the last dates of limitation for imposing penalties as per assessee under s. 275(1)(c) have been given and that in the column last but one, the dates on which the penalty orders were passed by Jt. CIT have been mentioned which clearly show that the said penalty orders under ss. 271D and 271E are barred by limitation as prescribed under s. 275(1)(c). It has been contended orally as also in writing on behalf of the assessee that the relevant finding of Jt. CIT for asst. yr. 1993-94 have been given in para 5(viii) on p. 4 of the penalty order for asst. yr. 1993-94 wherein he has held the penalty order to be within limitation applying cl. (a) of s. 275(1), and that the Jt. CIT has also held in para 5(ix) on p. 5 of his penalty order for asst. yr. 1993-94 that even if the cl. (c) is applicable, the penalty order is within limitation. It has been contended that the Jt. CIT has made similar observations in respect of penalties for asst. yrs. 1994-95 and 1995-96. For the sake of convenience and ready reference, we quote the provisions of s. 275(1)(a), (b) and (c) as under:

"No order imposing a penalty under this Chapter shall be passed:

(a) in a case where the relevant assessment or other order is the subject-matter of an appeal of the CIT(A) under s. 246 or an appeal to the Appellate Tribunal under s. 253, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which the order of the CIT(A), or, as the case may be, the Appellate Tribunal is received by the Chief CIT or CIT, whichever period expires later;

(b) in a case where the relevant assessment or other order is the subject-matter of revision under s. 263, after the expiry of six months from the end of the month in which such order of revision is passed;

(c) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated are completed, or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later."

7. It has been contended on behalf of the assessee that the AO, while framing assessment under s. 143(3), initiated the penalty proceedings under s. 271D and 271E specifically mentioning the same in the assessment orders that the penalty proceedings have been initiated. This is contained in paras, (ii) and (iii) in the assessment order for asst. yr. 1993-94. It has also been contended that the fact of initiation of penalty proceedings has also been recorded in para 2 on p. 1 of the penalty order under s. 271D for asst. yr. 1993-94 wherein the Jt. CIT observed that while passing the assessment order under s. 143(3), the AO has duly taken note of this and duly discussed the violation of provisions of s. 269SS and initiated penalty proceedings under s. 271D along with assessment order forming part of assessment proceedings; and that the Asstt. CIT issued penalty notice under s. 271D vide letter dt. 15th March 1996, served on 16th March, 1996. A copy of notice is placed on p. 2 of PB for asst. yr. 1993-94. It has been contended by the learned authorised representative of assessee that the penalty proceedings having been initiated on 15th March, 1996, by issuing specific notice for the purpose, as provided in law by AO, the period of six months from the end of the month in which the penalty notice was issued for initiation of penalty proceedings expired on 30th Sept., 1996. It has also been the contention of the authorised representative of assessee that these penalty proceedings are independent of the assessment proceedings and are accordingly covered by s. 275(1)(c). It has also been contended that the initiation of penalty proceedings for all the assessment years involved in appeals under consideration is identical and identical findings were given by AO and Jt. CIT in respective orders in all the cases. It has also been contended that the gist of assessee's contentions has been reproduced by Jt. CIT in para 4 on pgs. 2 and 3 of the penalty order under s. 271D for asst. yr. 1993-94 wherein the issuance of show-cause notice by Jt. CIT on 15th March, 1996, 12th Sept., 1996,and 20th Dec, 1996, for asst. yrs. 1993-94, 1994-95 and 1995-96 has been mentioned, it has been contended that in view of the aforesaid facts, the order of penalty should have been passed within six months from the end of the month wherein assessment was completed. It has also been contended that the provisions of s. 275(1)(a) have no application to the facts of the instant cases for the reasons that the penalties under ss. 271D and 271E have no dependence on or relevance with the computation of income being done in the assessment and so the decision of the appeals against assessment orders would not have any bearing on the concerned limitation. It has been contended that the Jt. CIT rejected the assessee's contention observing that the provisions of s. 275(1)(c) are residuary in nature which can be said applicable only in a case where relevant assessment order is not subject of appeal which is not the case of the appellant. He has contended that the learned CIT(A) also held that the nature of penalties and their dependence on or relevance with the issue involved in the relevant order is not relevant aspect and what is required under this clause is that relevant order should be subject-matter of appeal/irrespective of issues involved therein. He has contended that the learned CIT(A) accordingly upheld the decision of Jt. CIT that penalties imposed were within limitation. The learned authorised representative of assessee has contended that his contentions in respect of the issue of limitation are the same as raised by him before the authorities below. He has relied on the following decisions:

1. Manoharlal vs. Dy. CIT (1995) 53 TTJ (JP) 105;

2. Manoj Lalwani vs. Jt. CIT 23 TW (Jp) 434; and

3. Asstt. CIT vs. Madan Roller Flour Mills (2000) 66 TTJ (Asr) 452 : (1999) 71 ITD 275 (Asr).

8. The learned authorised representative of assessee has also theorised an analogy based on s. 272A(4) contending that the said section also provides for imposition of penalties under Chapter XXI and in that section other Revenue authorities have also been made competent to levy the penalty. He has contended that in s. 272A(4), it has been provided that no such penalty shall be levied unless an opportunity of being heard in the matter has been provided by such authority. He has contended that wherever the legislature deemed it proper to provide for issuing of notice by such other competent authority, they have made a specific provision in this Chapter itself as has been made in s. 272A(4), but no such provision has been made in ss. 271D(2) and 271E(2). He has contended that accordingly, the penalty proceedings in the appeals under consideration will have to be held as having been initiated during the course of assessment proceedings by the AO when he completed the assessment and took cognisance of the fact of violation and issued notices as prescribed under the relevant provisions. He has cited Mansinghka Brothers (P) Ltd. vs. CIT (1983) 37 CTR (Raj) 19 : (1984) 147 ITR 361 (Raj) and contended that it has been held in the said case that while considering the applicability of any beneficial provision, if two views are possible, then that view should be taken which is beneficial to the assessee.

9. He has contended that the impugned orders of imposition of penalty were barred by limitation and deserve to be cancelled.

10. As against this, the learned Departmental Representative or Revenue has contended that Chapter XXI containing ss. 270 to 275 deals with penalty. He has contended that learned authorised representative contention that s. 275(1)(c) is relevant is not correct. He has contended that the Department's plea is that the provision of s. 275(1)(a) is relevant. He has contended that the assessed income includes various additions including cash credits and if cash credit is treated as genuine and addition under s. 68 is not tenable, then penalty under s. 271D is leviable because there is violation of s. 269SS; if cash credit is held to be income of assessee under-s. 68 then s. 269SS will not operate and in turn, no penalty leviable under s. 271D. He has contended that because assessment was subject-matter of appeal before the Tribunal so the time-limit for levy of penalty is governed by s. 275(1)(a), i.e., within six months from the date of receipt of Tribunal's appellate order by CIT. He has contended that in these cases the Tribunal's appellate orders were received by CIT on 17th Sept., 1999, and so according to s. 275(1)(a) the period of limitation for imposing penalty was upto 31st March, 2000, and the penalty has been levied on 29th March, 2000, and so the levy of penalty is within limitation. He has contended that the provision of s. 275(1)(c) does not speak of any appellate proceeding; so this provision of s. 275(1)(c) is not applicable here. He has contended that in IT Act, there is no time-limit for initiation of penalty under s. 271D/271E but sub-s. (2) of s. 271D and of s. 271E provide jurisdiction to Jt. CIT for levy of penalty. He has contended that after receipt of Tribunal's order, the AO referred the matter to Jt. CIT for levy of penalty; and the Jt. CIT then issued notice to assessee on 21st Jan., 2000, and then he levied penalty on 29th March, 2000. He has contended that the levy of penalty by Jt. CIT is also within six months from issue of notice (initiation of penalty proceedings) by Jt. CIT. He has contended that those penalty proceedings which have no relevance with assessment proceeding alone are needed to be completed within six months from initiation as per time-limit given in s. 275(1)(c) because in those cases the appeal against assessment have no effect on penalty proceedings. He has contended that the other category of penalty proceedings which have relevance with assessment proceedings, as quantum of such penalties is determinable only on the final outcome of assessment are governed by s. 275(1)(a). He has contended that the citation referred to by the learned authorised representative of assessee are distinguishable on facts and do not apply in the matter.

11. We have considered the rival contentions, the relevant material on record, as also the cited decisions. From the perusal of record, we find the fact-situation for all the three assessment years in respect of the date of issuance of notice for the levy of penalty by AO and by the Jt. CIT and last date for levy of penalty as per Department and as per the assessee as under:

-----------------------------------------------------------------------
Asst. yr.          Notice by AO                  Notice by Jt. CIT
         under s. 271D    under s. 271E    under s. 271D  under s. 271E
-----------------------------------------------------------------------
93-94    15-3-1996/P2 PB  15-3-1996/P3 PB  21-1-2000      21-1-2000
94-95    12-9-1996/P3 PB  12-9-1996/P4 PB  21-1-2000      21-1-2000
95-96    20-12-1996/P1    20-12-1996/P3    21-1-2000/P2   21-1-2000/P4
-----------------------------------------------------------------------
Table Continues...
---------------------------------------------------------------
Last Date for Levy   Last date for Levy  Date of Penalty order
of penalty as per    of penalty as per
Revenue              assessee
---------------------------------------------------------------
31-3-2000            30-9-96             29-3-2000
31-3-2000            31-3-97             29-3-2000
31-3-2000            30-6-97             28-3-2000
---------------------------------------------------------------

12. In (1995) 53 TTJ (Jp) 105, Tribunal, Jaipur has held that penalties under ss. 271D and 271E are quite independent of the assessment proceedings It has been observed that the faults under those sections would normally be noticed in the course of assessment proceedings, but once having noticed the defaults, this penalty proceeding will be independent of the assessment proceedings and the penalties shall be imposable by Dy. CIT only. Even initiation of these penalty proceedings can be independent of the assessment proceedings and that s. 275 has undergone drastic changes to take care of such proceedings. It has been held that it is cl. (c) which takes care of such cases. After quoting the provision of s. 275(1)(c), the Tribunal has observed in para 10 of its order as under:

"From the above clause, it will be seen that the later part, that is, commencing from the words "or six months......".envisages and takes care of the limitation period in those cases where penalty proceedings can be initiated independent of the assessment proceedings. The earlier part of cl. (c) is meant for those penalty proceedings which are initiated in the course of assessment or any other proceedings Under both the situations, it is contemplated that there will not be any necessity to extend the period of limitation on account of appellate proceedings and, hence, are clubbed together in the same clause. Thus in our view, in the case before us, the limitation prescribed under cl. (c) of sub-s. (1) of s. 275 would be applicable".

13. In 23 TW 434, Tribunal Jaipur, while dealing with the matter of penalty under s. 271D, has held that the penalty proceedings under s. 271D can be initiated even after completion of assessment. The Tribunal also held that the period of six months can be reckoned from the end of the month during which penalty proceedings were initiated in case these were initiated after the completion of the assessment in view of s. 275(1)(c). In (1983) 37 CTR (Raj) 19 : (1984) 147 ITR 361 (Raj) the Hon'ble Rajasthan High Court has held as under:

"While considering the accessibility or applicability of any beneficial provision or any interpretation of facts or inferences to be drawn from facts, if two views are possible, then, that view should be taken which may be beneficial to the assessee."

14. In our considered opinion, the matter is squarely covered by the decision of Tribunal, Jaipur, rendered in the case of Manoharlal vs. Dy. CIT (1995) 53 TTJ (Jp) 105 discussed above which is further supported by the decision of Tribunal, Jaipur, rendered in the case of Manoj Lalwani vs. Jt. CIT as also by the above referred decision of the Hon'ble jurisdictional High Court in the case of Mansinghka Bros. (P) Ltd. vs. CIT. As mentioned above, it has been held by the Tribunal, Jaipur, in the case of Manoharlal vs. Dy. CIT that the penalties under ss. 271D and 271E are quite independent of assessment proceedings and initiation of these penalty proceedings can be independent of the assessment proceedings and that in respect of the penalties under ss. 271D and 271E the period of limitation prescribed under cl. (c) of sub-s. (1) of s. 275 would be applicable and not cl. (a) of s. 275(1). No contrary decision has been brought to our notice. In the circumstances, we need justifiably follow the aforesaid decision of Tribunal, Jaipur. We do not find force in the contention of the learned Departmental Representative of Revenue regarding the cash credit being found genuine or otherwise in the assessment proceedings and in turn making the proceedings for penalty under ss. 271D and 271E dependent on the assessment. In our considered opinion, even otherwise, even if the genuineness of cash credit was determined in assessment that does not restrain the initiation of proceedings for penalty under s. 271D and 271E prior to the conclusion of assessment nor does that make the initiation of proceedings for penalty under ss. 271D and 271E depend on the completion of assessment. When the assessee himself comes forward before the Department with the plea of certain borrowings in cash and the payment in cash exceeding the prescribed limits, this fact-situation does make out a prima facie case for levy of penalty under s. 271D/271E and does provide basis for the initiation of the aforesaid penalties without depending upon the assessment order. Besides, we may cite an example for illustrative purpose. Suppose X has advanced cash advance/loan of Rs. 30,000 in cash to Y or X has received payment of Rs. 30,000 in cash from Y, the cash deposit and the cash repayment exceed the prescribed limit of Rs. 20,000 and so make out a prima facie case for the levy of penalty under ss. 271D and 271E. This is noticed during assessment proceedings of X. However, may be that the income of Y is not taxable/assessable for the year. In such an eventual situation, hypothetically though, an assessment of Y will obviously not take place and if the interpretation regarding the initiation of proceedings for penalty under ss. 271D and 271E is taken otherwise, that is, depending on completion of assessment, the initiation of penalty proceedings may never take place at all. However, viewed as the initiation of penalty proceedings under s. 271D/271E to be independent of assessment, the penalty proceedings under ss. 271D and 271E can well be initiated whether the income of Y be taxable/assessable for the year or not. Again, the observation of Jt. CIT in para 5(ii) on p. 3 of the penalty order, as pointed out by the learned authorised representative of assessee in para. 1.9 on p. 6 of his w/s, that s. 275(1)(a) is applicable to the penalty proceedings initiated under Chapter XXI cannot be accepted as correct as rightly pointed out by the learned authorised representative of assessee in his w/s. If that were the situation, and the provision of s. 275(1)(a) were to apply to all the penalty proceedings initiated under Chapter XXI then the provisions of cls. (b) and (c) of s. 275(1) will be rendered redundant and inapplicable in any case. As such, considering all the facts and circumstances of the case, we respectfully follow the decision of Tribunal, Jaipur, in the case of Manoharlal vs. Dy. CIT and accordingly hold that in respect of the penalty proceedings under ss. 271D and 271E, the period of limitation prescribed under s. 275(1)(c) is applicable and not that prescribed under s. 275(1)(a).

15. As regards the factum of initiation of these penalty proceedings, it is revealed from record that the AO while completing assessment, took cognizance of the default under ss. 269SS and 269T, and in turn, of penalties under ss. 271D and 271E, and issued notices for the said penalties. The discussion/finding is contained specifically in paras. 16 and 17 on p. 19 and paras 19(ii) and 19(iii) of assessment order for asst. yr. 1993-94. Similar is the position in asst. yr. 1994-95 and 1995-96 as well. This discussion/finding of AO regarding taking cognizance of the default under ss. 271D and 271E and issuance of notices for the said penalties has also been specifically mentioned in the penalty orders. The above fact-situation regarding the AO's taking note of the default, initiation of penalty proceedings, and issuance of notice, and the mentioning of this factum of AO's said action in penalty order maybe tabulated as under:

---------------------------------------------------------------------
Asst. yr. Assessment  Assessment order        Penalty order   Remarks
            Order
---------------------------------------------------------------------
          Dated      Discussion of penalty    Mention of AO's
                     proceeding and           discussion of
                     issuance of notice       initiation of
                     u/s. 271D   u/s. 271E    penalty under
                                              ss.271D & 271E
---------------------------------------------------------------------
1993-94   15-3-1996  para 16     pare 17      para 5(iii), (v),
                     page 19     page 19      (vi), (ix) on
                     para 19(ii) para 19(iii) pages 3 to 5,
                     page 20     page 20      para 6 on page 5
1994-95   12-9-1996  para 21     pare 22      para 5(iii),(vii),
                     page 23     page 23      (ix) on pages 3
                     para 24(ii) para 24(iii) to 5, para 6 on
                     page 24     page 24      page 5
1995-96   20-12-1996 para 17     pare 18      para 5(iii),(iv),
                     page 16     page 16&17   (x) on pages 3
                     para 19(ii) para 19(iii) to 5, para 6 on
                     page 17     page 17      page 5
 ---------------------------------------------------------------------

16. We find force in the contention of the learned authorised representative of assessee that the issuance of notice of initiation of penalty under ss. 271D and 271E may appropriately and validly be by AO without necessitating further issuance of notice for the said penalties by Jt. CIT, the other authority, competent to levy the penalty. Sec. 272A also provides for imposing penalty under Chapter XXI and therein other Revenue authorities have also been made competent for the levy of penalty. In s. 272A, however, provision has been made in sub-s. (4) for the essential issuance of notice by such other competent authority. The said provision of law may, for convenience, be quoted as under:

"Sec. 272A(4)

No order under this section shall be passed by any IT authority referred to in sub-s. (3) unless the person on whom the penalty is proposed to be imposed is given an opportunity of being heard in the matter by such authority"

But no such corresponding provision is found in ss. 271D(2) and 271E(2). In such a situation, we find substance in the contention of the learned authorised representative of assessee, as made on p. 11 of his w/s that these penalty proceedings will have to be held as having been initiated during the course of assessment proceedings by the AO when he completed the assessment proceedings, took cognizance of the fact of violation and issued the notices prescribed under the relevant sections. In the circumstances, these penalty proceedings are found to have been initiated by AO while completing assessment and issuing notices; and the initiation of these penalty proceedings cannot be said to have been on the dates when the Jt. CIT issued notices, In that view of the matter, the AO having initiated these penalty proceedings and issued notices under ss. 271D and 271E in respect of asst. yrs. 1993-94, 1994-95 and 1995-96 on 15th March, 1996 12th Sept., 1996, and 20th Dec, 1996, respectively, the last day for the levy of penalty as per the period of limitation prescribed under s. 275(1)(c) fell on 30th Sept., 1996, 31st March, 1997 and 30th June, 1997, respectively, but the penalty orders under ss. 271D and 271E for the said three assessment years were made on 29th March, 2000, 29th March, 2000 and 28th March, 2000, as detailed above in the table given in para 11. Obviously, the penalty orders under ss. 271D and 271E for all the above three asst. yrs. 1993-94, 1994-95 and 1995-96 have been passed after the period of limitation as prescribed under s. 275(1)(c). As such, all the aforesaid six penalty orders having been passed beyond the prescribed period of limitation, the same are barred by limitation and so not tenable in law, and liable to be quashed.

17. In view of our conclusion drawn above, regarding all the penalty orders under ss. 271D and 271E for the three asst. yrs. 1993-94 to 1995-96 involved in these twelve appeals as being time-barred and so not tenable in law, and liable to be quashed an used hardly enter into discussions on merits of other issues involved in all these appeals of assessee and of Revenue; though it may safely be observed that even otherwise the assessee has a good case on merits is well in respect of most of transactions.

18. However, we may also consider the assessee's ground of reasonable and sufficient cause as contained in various grounds in various assessment years is tabulated below:

---------------------------------------------------------------------
Asst. yr.             271D                          271E
---------------------------------------------------------------------
1993-94   Ground 5                       Ground 5
          Bona fide act reasonable and   Bona fide act reasonable and
          sufficient cause under s. 273B sufficient cause under s.
          + transaction genuine          273B + transaction genuine
1994-95   Ground 6                       Ground 7
          Bona fide belief genuineness   Bona fide belief genuineness
          of transaction and sufficient  of transaction and sufficient
          cause under s. 273B            cause under s. 273B
 
1995-96   Ground 6                       Ground 5
          Reasonable and sufficient      Reasonable cause and bona
          cause regarding Annexure 'B'   fide belief regarding
                                         Annexure 'B' under s. 273B
          Note: CIT(A) accepted          Note: CIT(A) accepted
          reasonable and sufficient      reasonable and sufficient
          cause of bona fide belief reg. cause and bona fide belief
          Annexs 'A' & 'C (refer         reg. Annexs 'A' & 'C (refer
          statement of facts and         statement of facts of
          ground-5)                      ground-5)
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19. As has been contended by the learned authorised representative of assessee, the object and intention, with which the provisions of s. 269SS and 269T were brought on statute are also relevant/important to be kept in view. The object and intention behind introducing the above provisions have been clarified and explained in CBDT's Circular No. 387, dt. 6th July, 1984 as being to stop circulation of black money by countering the acts of taxpayers in explaining away the unaccounted money found during search as representing loans or deposits etc. In the instant case, however, the credits in asst. yr. 1993-94 on enquiry, were found to be genuine as has been contended by learned authorised representative of assessee. Besides, the returns for asst. yrs. 1993-94 and 1994-95 were filed much earlier to the date of search, based on books of accounts which were complete and closed, as has been pleaded by assessee in para 2.3 to 2.5 en pp. 15 to 17 of common w/s. The CBDT's circular No. 556, dt. 23rd Feb., 1990 has also been referred to by the learned authorised representative of assessee and the following extract, quoted in his common w/s on its p. 18 and also available on pp. 4 & 5 of assessee's PBI being for asst. yr. 1993-94 may be reproduced as under:

"4. The Board is of the opinion that where a 'Kachha Arhatiya.' sells goods belonging to an agriculturist, the sale proceeds thereof which remain with him cannot regarded as deposit made by the agriculturist with 'Kachha Arhatiya'. Further, where the 'Kachha Arhatiya' remits only a part of sale proceeds to the agriculturist, the unremitted part of the sale proceeds would also not assume the character of a deposit. Therefore, the repayment of such sale proceeds does not fall within the purview of s. 269T of the Act."

20. From the perusal of record we find that in asst. yr. 1993-94, the penalties under ss. 271D and 271E were levied by Jt. CIT in respect of the amount of seven entries pertaining to five farmers of Annexure 'A' and amount of Annexure 'B' representing balancing of accounts in respect of one hundred and seventy-five agriculturists. CIT(A) has deleted the penalties in respect of whole amount of Annexure 'B' and in respect of Rs. 75,000 out of Rs. 2,64,000 of Annexure 'A', and thus sustained in respect of Rs. 1,89,000 of Annexure 'A' only. Similarly as regards asst. yr. 1994-95, the Jt. CIT levied penalties in respect of amounts of Annexures 'A', 'B', 'C & 'D'. The amount of Annexure 'A' pertains to sale of wheat by 14 agriculturists to FCI amounts of Annexure 'B' stated to be cash deposits by six farmers amounts of Annexure 'C represent sale of crops by farmers. In respect of tallying credit entries. The learned CIT(A) has sustained penalties in respect of amount of Annexure 'B' and 'C being Rs. 7,20,443 (Rs. 2,30,536 + 4,89,907) under s. 271D and Rs. 8,30,247 (3,01,931 + 5,28,316 under s. 271E. In the same manner, the Jt. CIT levied penalties in respect of amounts of Annexure 'A', 'B' & 'C'. The amounts of annexure 'A' represent deposit by farmers of cash receipts from FCI, being sale proceeds of wheat; the amounts of Annexure 'B' represent non-tallied credit entries pertaining to farmers in notebook A-1/11; and the amount of Annexure 'C' represent tallying credit entries. Deposited by farmers out of sale of crops. The learned CIT(A) sustained the penalties of Rs. 8,99,963 each under ss. 271D and 271E representing the amounts of Annexure 'B' and cancelled the penalties in respect of the amounts of Annexures 'A' and 'C' As such it is revealed from the record that all the transactions, involved in the penalties levied by Jt. CIT under ss. 271D and 271E in the three asst. yrs. 1993-94, 1994-95 & 1995-96, are of assessee-Arhatiya with farmer agriculturist constituents, and there has been no dispute by the Department on this point.

21. The contentions of the learned authorised representative of assessee, in this regard, has been as under:

(i) That the assessee a Kachha Arhatiya (K.A.) has to deal with the agriculturists of nearby villages who bring their agricultural produce to K.A. for its sale. These agriculturists do not take to their homes, the money of sale proceeds of their produce at once after the sale and keep the money with K.A. and use it afterwards for their personal or agricultural purposes like purchasing seeds, fertilizers, pesticides, medicines, clothes and may at times also take or receive cash in piecemeal, as per their needs. They generally do not keep the entire money at their homes for the fear of its wasteful spending in avoidable purposes or due to fear of theft, etc. This has been the practice prevalent since long even before coming into force of the provisions of ss. 269SS and 269T.

(ii) These agriculturists operate with K.A. as their banker, and in the manner of a current account by numerous and frequent transactions of withdrawals depending on their needs and getting the credits of the sale proceeds in their accounts. The farmers are rough and rustic and are also orthodox in their dealings and by their nature as also as per past practice they feel it seemed too depend on such K.A. and deal with them accordingly, who satisfy their timely needs without paper formalities.

(iii) In such dealings the agriculturists on many occasions bring their other money accumulated with them from their other sources like cattle breeding or farming poultry farming, sale of vegetable or other orchard corp which they sell at places other than grain mandies. They bring such money in cash to be kept by K.A. without any conditions.

(iv) That such violations, if it be held so, has been on account of part unobjected traded practice, which had been in all bona fides, and so followed.

(v) Unobjected past conduct without there being change in facts and law has to be accepted, and principle of res judicata applies Radha Soami Satsang vs. CIT (1991) 100 CTR (SC) 267 : (1992) 193 CTR 321 (SC), Sardar Kehar Singh vs. CIT (1991) 92 CTR (Raj) 88 : (1992) 195 ITR 769 (Raj) and Pukhraj Rikhabdas vs. CWT (1993) 203 ITR 770 (Raj) been referred.

(vi) The assessee has bona fide belief of permissibility of transactions by R.A. with farmers. Harpal Singh Jaswant Singh vs. ITO (1996) 51 TTJ (Asr) 383 has been cited. Even mistaken belief about the provision constitutes reasonable cause for cancellation of penalty under s. 271D ITO vs. Babu Lal Singhvi 23 T.W. 223 (Jodhpur-ITAT) has been cited.

(vii) When transactions are not impeached as bogus, no penalty can be levied under ss. 271D and 271E. M.M. George Brothers (1993) 47 TTJ (Coch) 434, Industrial Enterprises vs. Dy. CIT (2000) 68 TTJ (Hyd) 373 : (2000) 73 ITD 252 (Hyd), Vir Sales Corpn. vs. Asstt. CIT (1994) 50 TTJ (Ahd) 130 and Dr. Deepak Muchala vs. ITO (1997) 58 TTJ (Bom) 524 have been referred to.

22.(i) In (1991) 100 CTR (SC) 267 : (1992) 193 ITR 321 (SC) it has been held by Hon'ble Supreme Court that where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. In (1991) 92 CTR (Raj) 88 : (1992) 195 ITR 769 (Raj) the Hon'ble Rajasthan High Court has held that a finding reached in assessment proceedings for an earlier year after due enquiry would not be reopened in a subsequent year, if no fresh facts are found in the subsequent assessment year.

(ii) In (1996) 51 TTJ (Asr) 383 the assessee Kachha Arhatiya was having dealings with agriculturists and was keeping their money in safe custody. Transactions was not bogus and assessee was also under bona fide belief that dealing with agriculturists could not be held guilty of violation of s. 269SS.

(iii) In 23 TW 223, Tribunal, Jodhpur, has held that a mistaken belief can be treated as bona fide belief and reasonable cause. It was a matter of penalty under s. 271D.

(iv) In (1993) 47 TTJ (Coch) 434 it has been held that bona fide belief coupled with the genuineness of transactions will constitute reasonable cause for not invoking provisions of ss. 271D and 271E. It has also been held that the above provisions are directory and not mandatory.

(v) In (1994) 50 TTJ (And) 30 the penalties under ss. 271D and 271E were involved. It was held therein that genuineness of transactions having been accepted by Department and made under bona fide belief, their being no guilty intentions. Constituted reasonable course within the meaning of s. 273B.

23. Considering the above-mentioned specific contentions raised on behalf of assessee as also all the facts and circumstances of the case, and taking a circumspect view of the entire fact-situation together with the spirit of Board's Circular No. 387, dt. 6th July, 1987, and Circular No. 556, dt. 23rd Feb., 1990 and the legal position emanating from the various judicial pronouncements cited/referred by the learned authorised representative of assessee we find that the assessee acted under bona fide belief and did have reasonable and sufficient cause, as provided under s. 273B of the IT Act 1961, so as to exonerate the assessee of the fault/defiance, if considered to be. In that view of the matter we find the penalties under ss. 271D and 271E as not sustainable/ tenable.

24. However, we may make it clear that in view of our above conclusions/findings we are not discussing the other niceties/details of rival contentions on merits each itemwise for the reason that we do not consider the same to be needed in the circumstances.

25. As such in view of our above discussions/conclusions we find all the penalties under ss. 271D and 271E, levied by Jt. CIT for asst. yrs. 1993-94, 1994-95 and 1995-96 to be barred by limitation and so not tenable in law, and also due to the assessee having reasonable and sufficient cause, the said penalties are not sustainable. In the situation the question as to which item of alleged loan/deposit/repayment the penalty under ss. 271D/271E deserves to be sustained/restored/deleted on merits loses significance, and the issue pertaining thereto gets lost. This finding of ours disposes of all the appeals of assessee as also those of Revenue, under consideration. Accordingly, in view of our above findings that the orders of penalties passed under ss. 271D and 271E for asst. yrs. 1993-94, 1994-95 and 1995-96 are not tenable/sustainable in law, we quash the same.

26. In the result, all the above six appeals of assessee being ITA Nos. 429 to 434/Ju/2000 are allowed whereas all the above six appeals of Revenue, being ITA Nos. 499 to 504/Ju/2000, are dismissed.

 

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